Lively v. Peery
- Richard Seeborg
- 3:21-cv-04222
- U.S. District Court · Northern District of California
- 3
In Lively v. Peery, Judge Kim ordered a response to Eric J. Lively’s habeas petition and discovery motion without deciding his claims.
The order affects Eric J. Lively, who must respond if the respondent files an answer or a procedural motion to dismiss, and S. Peery, who must respond to the petition and discovery motion and provide relevant state trial-record materials.
What happened
In Lively v. Peery, Eric J. Lively, a state prisoner representing himself, challenged his second-degree murder conviction and 15-years-to-life sentence in a federal petition. He raised 13 claims, including prosecutorial misconduct, ineffective assistance of counsel, instructional error, insufficient evidence, juror misconduct, and denial of counsel on appeal.
The court found that the claims could potentially be considered under the federal habeas statute and ordered Respondent S. Peery to respond. The court also ordered a response to Lively’s discovery motion and required production of relevant portions of the state trial record. The court did not decide whether Lively was entitled to habeas relief.
Judge Sallie Kim issued an order to show cause requiring Peery to file either an answer or, on procedural grounds, a motion to dismiss. Lively may file a response after Peery’s filing.
The detailed version
- Lively v. Peery · No. 3:21-cv-04222
- Richard Seeborg
- Mar. 18, 2022
Background
Eric J. Lively, a state prisoner proceeding without a lawyer, filed a first amended petition under 28 U.S.C. § 2254 challenging a Humboldt County Superior Court conviction and sentence. A jury found Lively guilty of second-degree murder, and on March 28, 2018, the state court sentenced him to 15 years to life in prison. The California Court of Appeal affirmed the judgment on April 15, 2019, and the California Supreme Court denied review on July 24, 2019.
Lively filed the federal case after pursuing multiple state habeas petitions. The court had previously stayed the federal proceedings so he could present additional ineffective-assistance claims to the state courts. After filing the amended petition, Lively also filed a motion for discovery under Rule 6(a) of the federal rules governing § 2254 cases.
Claims and Analysis
The amended petition asserted 13 claims, including prosecutorial misconduct, ineffective assistance of trial counsel, instructional error, insufficient evidence, juror misconduct, and denial of counsel on direct appeal. At the initial review stage, the court concluded that the claims, liberally construed, appeared potentially cognizable under § 2254 and warranted a response from the respondent. The court likewise concluded that the discovery motion warranted a response.
The court did not determine the merits of any claim, decide whether the conviction or sentence violated federal law, or grant habeas relief. Instead, it directed the respondent to explain why the writ should not be granted.
Order
The clerk was directed to serve the order, the operative petition, and the discovery motion on Respondent S. Peery and the California Attorney General’s Office. The respondent was ordered to file an answer within 60 days and to provide relevant portions of the previously transcribed state trial record. The respondent also had to respond to the discovery motion. Lively could file a traverse within 30 days after receiving the answer.
The respondent was permitted to file a motion to dismiss on procedural grounds instead of an answer. The order therefore advanced the case past initial review but did not resolve the habeas petition or the discovery motion on the merits.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.